Digital Collections @ Suffolk
Not a member yet
8574 research outputs found
Sort by
Criminal Law - Determining When, If Ever, Sex Offender Registration Applies to Juvenile Defendants - Commonwealth v. Samuel S., 69 N.E.3D 573 (Mass. 2017)
Get PDFConstitutional Law - Double Jeopardy Will Not Bar Subsequent Prosecution under Alternative OUI Theory - Commonwealth v. Hebb, 77 N.E.3D 308 (Mass. 2017)
Get PDFLexical Opportunism and the Limits of Contract Theory
Get PDFThis essay is a reflection on the gap between the real-life practice of contract law and some of the academic theory that tries to explain it. I describe “lexical opportunism,” an aspect of contract practice having three elements. First, the parties must have reduced a complex business arrangement to contractual text, portions of which are as devoid of thoughtful drafting or close negotiation as the boilerplate in a consumer contract. Second, an adversary cleverly develops a legal theory based upon a colorable interpretation of that text. Third, this interpretation creates a potential for staggering liability beyond all common sense. A multi-billion lawsuit, recently settled, serves as an example, and triggers my discussion of (a) what it means to engage in theoretical assessment in contract law; (b) how the justification of contract law by way of inhibiting economic opportunism is based on the simplest examples, rather than the kind of contract discourse found in any real-world contract worth spending millions to litigate; and (c) how normative theory based on upholding the moral sanctity of promise keeping evaporates when the parties disagree about the meaning of their promises. I argue that both economic and moral theories about contract law fail to account for issues in the use of language and depend on the naïve adoption of the correspondence theory of truth. The nature of language permits opportunism, and the only check on it is the desire, from whatever motivation, not to be opportunistic. I conclude with what I hope are some constructive thoughts about the appropriate use of theory in lawyering, and thereby mitigate my skepticism whether any single theory or discipline is capable of meaningful explanation or prediction about lexical opportunism
Beyond Legal Reasoning: a Critique of Pure Lawyering
Get PDFThis is the Preface to Beyond Legal Reasoning: A Critique of Pure Lawyering (Routledge, 2017) (ISBN: 978-1138221307).
The book provides a critique of the traditional views of “thinking like a lawyer” or “pure lawyering,” aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing examples from the intersection of real world law and business issues, the book argues the “pure lawyering” of traditional legal education is agnostic to either truth or moral value of outcomes. It offers a critique of pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors
Flipped Out, Plugged In, and Wired Up: Fostering Success for Students with ADHD in the New Digital Law School
Get PDFThe Supreme Court\u27s Constitutional Bright Line : Preempting Authority of 47 of 50 States
Get PDFThe Supreme Court unanimously stripped 47 of the 50 states of their authority to regulate key commerce. In Hughes v. Talen Energy Marketing, the Court withdrew from state authority the power over law applicable to, and now controlling, what is identified as the second most important invention in history.The transcendent constitutional question is whether this unanimous Supreme Court decision expands constitutional “field preemption” to permanently withhold from 47 states this power, or only employs “conflict preemption” to preempt this one single challenged state regulation. This article examines and esolves that the Court chose “field preemption” to permanently crimp and disable state authority in 47 of the 50 states over critical U.S. technology.This article examines in detail how the Court arrived at its unanimous decision, focusing on how key issues were briefed and presented by both sides and amici. This article analyzes two critical concurring Supreme Court opinions “bracketing” and further defining implied constitutional field preemption
Juvenile Law - Extension Denied: Massachusetts Supreme Judicial Court Rules Juvenile Sentences with the Eligibility for Parole Constitutional - Commonwealth v. Bright, 974 N.E.2D 1092 (Mass. 2012), Aff\u27d, No. 14-P-546, 2016 Mass. App. Unpub. Lexis 379 (Mass. App. Ct. 2016)
Get PDFSeeking Proportional Discovery: The Beginning of the End of Procedural Uniformity in Civil Rules
Get PDFAligning Education Rights and Remedies
No full textOver the course of five decades and three waves of litigation, courts have approved remedies under the state constitutional right to education that demand more equitable and adequate funding of public schools. Scholars have urgently called for a \u27fourth wave of litigation seeking remedies beyond money: racial and socioeconomic integration, school choice, universal preschool, and teacher tenure reform, just to name a few. Desperate for progress and to escape the incessant rut of school funding battles, advocates have, in turn, initiated lawsuits seeking a broader range of remedies. If this strategy induces a fourth wave, advocates will encounter a beleaguered state judiciary still skeptical that court-directed remedies do not invade the provinces of the other coordinate branches. State courts are unlikely to overcome these doubts until they adopt cohesive standards aligning education rights and remedies.
This Article proposes that alignment can be achieved through reasonably congruent judicial remedies and directly proportional legislative remedies. Both standards gauge whether a remedy effectuates the right to education\u27s function to protect children from the harms of educational deprivations and disparities. Both remedial standards are configured for that purpose to operate within the boundaries set for each branch by state separation of powers principles, conferring guided deference to legislative remedies and closer scrutiny of judicial remedies. The Article briefly previews two proposed fourth-wave, injunctive remedies-integration and choice-suggesting each must overcome evidentiary deficits to satisfy the reasonable congruence standard